Opinion
G053092
08-11-2017
THE PEOPLE, Plaintiff and Respondent, v. JESUS FRANCISCO OSORIO, Defendant and Appellant.
Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CF0586) OPINION Appeal from a judgment of the Superior Court of Orange County, John S. Adams, Judge. Affirmed. Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
The People charged defendant Jesus Francisco Osorio with two felonies: a battery on a police officer causing injury, and an attempt to deter an officer from performing his duties using force or violence. (Pen. Code, §§ 243, subd. (c)(2), 69.) A jury deadlocked on the battery charge and convicted Osorio of the section 69 offense. At sentencing, the trial court reduced the battery charge to a misdemeanor, Osorio pleaded guilty, and the court imposed an aggregate three-year prison term.
Further undesignated statutory references will be to the Penal Code.
In this appeal, Osorio makes several interrelated claims of error involving the jury instructions, prosecutorial misconduct, and ineffective assistance of counsel. Several of these claims concern the battery charge, but those claims are not cognizable on appeal because he pleaded guilty to that crime and did not obtain a certificate of probable cause. (§ 1237.5.) As far as the section 69 conviction, we find no reversible errors. We also reviewed the transcript of an in camera Pitchess hearing concerning the disclosure of officer personnel records. We find that the trial court did not abuse its discretion.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
Thus, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On March 18, 2015, Santa Ana Police Officers Robert Romero and Edward Gutierrez responded to an emergency dispatch call of a possible spousal abuse in progress at an apartment complex. As the officers were walking through the building, they heard voices yelling and screaming. They heard a woman shout: "Let me go. Stop it. The baby." They followed the voices to an elevator. Within the open elevator were Maria B. and Osorio.
As the officers approached the elevator, Maria B, said, "Here come the police." Osorio said, "F*** them." When Officer Gutierrez asked Maria B. and Osorio to step out of the elevator, Osorio shouted, "F*** you, I don't have to." After Maria B. left the elevator with a stroller, Osorio clenched his fists and moved towards Gutierrez. Osorio appeared to be intoxicated and angry. Osorio told the officers, "F*** you, come and get me." He repeated, "come and get me," about two to three times.
Osorio charged at Officer Romero; in response, Romero struck Osorio in the face "with a right palm strike," which knocked Osorio to the back of the elevator. As Osorio charged at the officer a second time, Romero grabbed Osorio by the shoulders, did a "leg sweep," and threw him to the floor. Romero slipped and also fell to the floor. While on the floor, Osorio started punching Romero with both of his fists and kicking Officer Gutierrez, who had also entered the elevator. During the struggle, Romero's radio and baton fell to the floor. As Gutierrez was being kicked, he picked up Romero's baton and hit Osorio two or three times on his legs with the baton. Gutierrez also picked up Romero's radio and used it to hit Osorio in the face.
As Officer Romero attempted to handcuff Osorio, he started swinging his head in an apparent attempt to head butt Romero. Officer Gutierrez punched Osorio in the mouth. Osorio grabbed at Gutierrez's shirt. Romero was eventually able to place handcuffs on Osorio, although he continued to kick his legs. After calling for backup, other officers arrived and removed Osorio from the elevator. During this time, Osorio repeatedly shouted, "F*** you, guys." The officers transported Osorio to a medical center. Osorio presented evidence at trial showing that a couple of days after the encounter, he had bruising and a cut on his face. During the melee, Gutierrez had also slipped and injured his thumb.
The People charged Osorio with two felony counts: 1) a battery on a peace officer (Officer Gutierrez); and 2) an attempt to deter a peace officer through force or violence (Officer Romero). (§§ 243, subd. (c)(2), 69.) The amended information also alleged a prior strike conviction and a prison prior. (§§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)(1), 667.5, subd. (b).) The jury was unable to reach a verdict as to count one, but found Osorio guilty of count two. The trial court declared a mistrial as to count one. The court granted Osorio's unopposed motion to reduce the battery charge to a misdemeanor; Osorio pleaded guilty to the reduced charge. The court dismissed the prior strike conviction and imposed a three-year sentence.
II
DISCUSSION
Osorio makes numerous claims of error. He claims that the trial court: improperly instructed as to specific intent; failed to give three lesser included instructions; and failed to "fully instruct" on the defenses of excessive force and self-defense. Interrelated with those claims, Osorio also asserts the prosecutor committed misconduct and his attorney provided ineffective assistance. Further, he requests that we conduct an independent review of a pretrial Pitchess hearing. (Pitchess, supra, 11 Cal.3d 531.) Finally, he argues that the cumulative effect of the alleged errors requires reversal.
We shall address each contention in turn. A. Specific Intent Jury Instruction
"Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty, is punishable by a fine . . . or by imprisonment . . . or by both such fine and imprisonment." (§ 69, italics added.) The crime requires a specific intent to interfere with the lawful performance of the officer's duties. (People v. Orloff (2016) 2 Cal.App.5th 947, 952.) A trial court has a sua sponte duty to instruct as to specific intent. (People Alvarez (1996) 14 Cal.4th 155, 220.) The failure to give a specific intent instruction is reversible when there is a reasonable probability that the error affected the outcome of the trial. (Ibid.; People v. Watson (1981) 30 Cal.3d 290, 296-297 (Watson).)
The trial court instructed the jury on the "deter," but not the "resist" prong of section 69.
Here, the trial court did not give the jury the pattern instruction concerning specific intent. (CALCRIM No. 251.) Instead, the court mistakenly instructed the jury that deterring an officer is a crime of general criminal intent. (CALCRIM No. 250.) However, we find that there is no reasonable probability that this error affected the outcome of the trial. Osorio's words and actions within the elevator plainly evidenced his intent to deter the officers from performing their duties (investigating the domestic violence call). But more importantly, the court accurately instructed the jury regarding the required element of specific intent within the jury instruction for the crime itself. (CALCRIM No. 2651.)
The court instructed the jury that: "The crimes charged in this case require proof of the union, or joint operation, of act and wrongful intent. [¶] For you to find a person guilty of the crimes in this case of Battery on a Peace Officer, as charged in Count 1, and Resisting or Deterring an Executive Officer, as charged in Count 2, that person must not only commit the prohibited act or fail to do the required act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act or fails to do a required act; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime." (CALCRIM No. 250 [Union of Act and Intent: General Intent].)
"'[T]he characterization of a crime as one of specific intent [or general intent] has little meaningful significance in instructing a jury. The critical issue is the accurate description of the state of mind required for the particular crime.'" (People v. Hering (1999) 20 Cal.4th 440, 447 (Hering).) In Hering, the People charged a doctor and an administrator with two crimes involving the offering of bribes in exchange for patient referrals. (Id. at pp. 442-444; Bus. & Prof. Code, § 650; Ins. Code, § 750.) The trial court refused the defendants' request to instruct as to specific intent; rather, the court instructed the jury that the crimes required general criminal intent. (Hering, supra, 20 Cal.4th at pp. 443-444.) The California Supreme Court held that the two charged offenses were, in fact, specific intent crimes, but found no reversible error. (Id. at pp. 446-447.) The court found that within the instructions for the crimes themselves, the court had accurately instructed the jury regarding the requisite specific intent, and the erroneous general intent instruction was not prejudicial. (Id. at pp. 444-447.)
In this case, the trial court instructed the jury as follows: "The defendant is charged in Count 2 with trying to prevent or deter an executive officer from performing that officer's duty in violation of Penal Code, section 69, A FELONY. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully and unlawfully used violence or a threat of violence to try to prevent or deter an executive officer from performing the officer's lawful duty; [¶] AND [¶] 2. When the defendant acted, he intended to prevent or deter the executive officer from performing the officer's lawful duty. (CALCRIM No. 2651, italics added.) The italicized portion of the court's instruction accurately described the requisite specific intent that the prosecutor was required to prove under section 69.
Here, just as in Hering, although the trial court inaccurately designated the section 69 offense as a crime of general criminal intent, the court accurately instructed the jury on the elements of the crime, including the required specific intent. Thus, we find no reasonable probability of a different outcome had the error not occurred. (Watson, supra, 30 Cal.3d at pp. 296-297.)
Osorio argues that the trial court's error in failing to give the specific intent instruction effectively relieved the People's burden to prove each element of the crime and therefore the more rigorous federal harmless error standard applies. (Chapman v. California (1967) 386 U.S. 18 [the state is required to prove that the error was harmless beyond a reasonable doubt].) We disagree. The requisite intent—although not labeled as "specific intent"—was accurately stated as an element of the crime within CALCRIM No. 2651.
Osorio also argues that: "The verdict form provided to the jury for Count 2 [, section 69,] further obscured the specific-intent requirement, by describing the crime as "RESISTING AND DETERRING AN EXECUTIVE OFFICER." Osorio cites People v. Ochoa (1998) 19 Cal.4th, 353, 426-427, for the proposition that: "[A] verdict form may not state principles 'contrary to the instructions given' [citations], for doing so might cause the jury to disregard or discount those principles." However, as the Attorney General correctly points out, "a verdict form need not restate the legal principles provided in proper instructions. Indeed, as a rule it is not reversible error to fail to provide the jury with a verdict form at all [citation] . . . ." (Id. at p. 426.)
Again, there are two ways of violating section 69, either by deterring or resisting an executive officer. The People did not pursue, nor did the trial court instruct on the resistance prong of section 69.
Here, the verdict form stated the general title of the crime and required the jury to circle one of two options: GUILTY or NOT GULITY. The verdict form did not state principles of law contrary to the jury instruction. The trial court properly instructed the jury that it had to find that Osorio deterred an officer through force or violence with the requisite specific intent. As usual, we presume that the jury understood and followed the court's instructions. (People v. Smith (2007) 40 Cal.4th 483, 517-518.)
In sum, we find that it is not reasonably probable that the error regarding the specific intent instruction affected the jury's guilty verdict as to the section 69 offense given the evidence of Osorio's intent and the accurate instruction concerning specific intent within the instruction for the crime itself. B. Necessarily Lesser Included Jury Instructions
Generally, a trial court has a sua sponte duty to instruct a jury on necessarily lesser included offenses, so long as they are supported by substantial evidence. (People v. Shockley (2013) 58 Cal.4th 400, 403-404.) There are two tests used "in determining whether an uncharged offense is necessarily included within a charged offense: the 'elements' test and the 'accusatory pleading' test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former." (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.) However, the court need not instruct on lesser included offenses where the lesser offense is not supported by the evidence. (People v. Avila (2009) 46 Cal.4th 680, 704-705.)
Here, Osorio argues that the trial court erred by failing to provide the jury with instructions on the following offenses: 1) resisting, delaying, or obstructing an officer (§ 148, subd. (a)(1)) as a lesser included offense of deterring an officer (§ 69); 2) simple assault and battery (§§ 240, 242) as lesser included offenses of deterring an officer (§ 69); and 3) simple assault and battery (§§ 240, 242) as lesser included offenses of battery against an officer with injury (§ 243, subd. (c)(2)).
Hereafter, section 148(a)(1).
We shall address each argument in turn.
1. Section 148(a)(1) as a lesser included offense of section 69
As relevant here, section 148(a)(1) provides that: "Every person who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or her . . . employment . . . shall be punished [as a misdemeanor]." Again, section 69 provides that: "Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty, is punishable [as a felony or a misdemeanor]." (Italics added.)
That is, section 69 states two distinct ways in which a defendant may violate its provisions. (People v. Smith (2013) 57 Cal.4th 232, 240-241 (Smith).) Under the first prong, a defendant may violate the statute by attempting to deter a peace officer from performing his or her duties using threats or violence. Under the second prong, a defendant may violate the statute by resisting a peace officer by the use of force or violence. (Id. at pp. 240-241.)
Under the "statutory elements test," section 148(a)(1) "is not intrinsically a necessarily lesser included offense of section 69 because a defendant can violate section 69 in the first way, by attempting to deter an executive officer from performing a duty, without violating section 148(a)(1)." (Smith, supra, 57 Cal.4th at p. 243.) In contrast, "[a] person who violates section 69 in the second way—by 'knowingly resist[ing], by the use of force or violence, such officer, in the performance of his duty'—also necessarily violates section 148(a)(1) by 'willfully resist[ing] . . . any public officer . . . in the discharge or attempt to discharge any duty of his or her office or employment.' [Citation.]" (Id. at p. 241.)
However, under the "accusatory pleading" test, misdemeanor resisting is not a lesser included offense of section 69 if the defendant is only charged with the first way of violating section 69. (Smith, supra, 57 Cal.4th at p. 242.) And if an accusatory pleading charges the defendant with "both ways of violating section 69," then misdemeanor resisting in violation of section 148(a)(1) is presumptively a necessarily included offense of the charged crime. (Smith, supra, 57 Cal.4th at p. 242, italics added.)
In Smith, the defendant physically resisted guards on two separate occasions while he was in jail; the prosecution charged him with two counts of violating section 69. (Smith, supra, 57 Cal.4th at p. 245.) The trial court denied defendant's requests for lesser included instructions and the jury found him guilty of both counts. On appeal, defendant argued that section 148(a)(1) is a necessarily lesser included offense of section 69, under the accusatory pleading test. The Supreme Court agreed: "The prosecution may, of course, choose to file an accusatory pleading that does not allege the commission of a greater offense in a way that necessarily subsumes a lesser offense. But so long as . . . there is substantial evidence that the defendant committed the lesser offense without also committing the greater, the trial court must instruct on the lesser included offense." (Smith, supra, 57 Cal.4th at p. 244.) However, the court found that the defendant "physically resisted" the guards at the jail. As such, "[d]efendant was either guilty or not guilty of resisting the executive officers by the use of force or violence in violation of section 69. There was no evidence that defendant committed only the lesser offense of resisting the officers without the use of force or violence in violation of section 148(a)(1). [Citation.] Accordingly, the trial court was not required to instruct the jury on the necessarily included lesser offense of section 148(a)(1)." (Id. at p. 245.)
When a crime can be committed in more than one way and the People have charged the crime in more than one way, respondent Attorney General argues that the accusatory pleading test may be discarded if the trial court ultimately instructs the jury as to only one way of committing the crime. While that argument may seem to make intuitive sense, respondent cites no cases that support that proposition. (Compare People v. Campbell (2015) 233 Cal.App.4th 148, 158-162 [under the accusatory pleading test, the trial court is not limited to the theory under which the People tried the case].)
Here, the facts are similar to Smith. The amended information charged Osorio with both ways of violating section 69. Thus, under the accusatory pleading test, section 148(a)(1) was presumptively a necessarily lesser included offense. However, just as in Smith, there was no evidence that Osorio committed only the lesser offense of section 148(a)(1) without the use of force or violence. Thus, the trial court was not required to instruct the jury on section 148(a)(1).
Osorio argues that had the trial court instructed on the defense of voluntary intoxication, the jury may have found that he lacked the specific intent to violate section 69, but could still have found him guilty of violating section 148(a)(1). However, Osorio did not advance this defense at trial, nor did he request a voluntary intoxication instruction. (People v. Borland (1996) 50 Cal.App.4th 124, 129 ["It is well established that a party may not change his theory of the case for the first time on appeal"]; compare People v. MacKenzie (1995) 34 Cal.App.4th 1256-1257 [trial court erred in refusing defendant's request for an instruction on section 148(a)(1) as a lesser included offense of section 69 when voluntary intoxication defense was advanced at trial].) Thus, we need not consider this contention.
In any event, even if the trial court had instructed on voluntary intoxication as a defense to section 69, and had also instructed on the lesser included offense of section 148(a)(1), we do not find it reasonably probable that the jury would have convicted Osorio only of the lesser crime. The gravamen of a section 69 offense is the defendant's use of force and violence; it is the crucial element that separates the felony from the misdemeanor offense. (See People v. Hairston (2009) 174 Cal.App.4th 231, 238.) In this case, from the outset of his encounter with the officers, it is apparent that Osorio intended to use (and did use) force or violence to prevent the officers from performing their duty (investigating the domestic violence call). When Osorio was first asked to leave the elevator he shouted, "F*** you, I don't have to." And he repeatedly told the officers, "F*** you, come and get me." While there was some evidence that Osorio had been drinking alcohol, there was no evidence that his intoxication negated his intent to deter the officers from performing their duties through force or violence.
In sum, while section 148(a)(1) is a presumptively lesser included offense of section 69 under the accusatory pleading test, there is no evidence that Osorio violated the lesser included offense without also violating the greater offense. Thus, the trial court did not commit an instructional error. Further, given the evidence in this case, even if we were to find an instructional error for failing to instruct on section 148(a)(1), it is not reasonably probable that such an error affected the outcome of the trial.
2. Simple assault and battery as lesser included offenses of section 69
A misdemeanor (or simple) assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) A misdemeanor (or simple) battery is "any willful and unlawful use of force or violence upon the person of another." (§ 242.) An assault is an attempted battery and a battery is a completed assault; that is, it is impossible to commit a battery without also committing an assault. (People v. Hayes (2006) 142 Cal.App.4th 175, 180.)
Based on the two ways in which section 69 can be violated, "[a] person can violate section 69 in the first way [attempting to deter] without necessarily attempting to apply physical force," such that misdemeanor assault "is not a lesser included offense of section 69 under the statutory elements test." (People v. Brown (2016) 245 Cal.App.4th 140, 153 (Brown).) In contrast, "it is not possible to violate the statute in the second way [resisting] without committing an assault," such that assault is a lesser included offense of section 69. (Ibid.) Thus, under the accusatory pleading test, if the information alleges both ways of violating section 69 in "the conjunctive," then "assault [is] necessarily a lesser included offense of section 69 under the accusatory pleading test. [Citation.]" (Brown, supra, 245 Cal.App.4th at p. 153.)
Respondent argues that the holding of Brown is incorrect and that an assault or a battery can never be a lesser included offense of section 69 "in any of its forms." Respondent contends that a section 242 battery (a use of force), or a section 242 assault (a would-be use of force), must be committed "upon the person of another," whereas section 69 does not require that the use of force be "upon the person," in this case, an officer. We disagree with Respondent's analysis. The resistance prong of a section 69 "offense involves 'force or violence' by the defendant against an officer engaged in his duties at the time of the defendant's resistance." (People v. Carrasco (2008) 163 Cal.App.4th 978, 985, italics added.) Thus, if a defendant slashed an officer's tires (a hypothetical section 69 offense advanced by respondent at oral argument), that act would certainly not constitute an assault or a battery because it is not against a person, but it would also not constitute a violation of section 69, at least under the resistance prong, because it does not involve force or violence against an officer.
Here, the analysis regarding simple assault or battery as lesser included offenses to section 69 is somewhat similar, though somewhat distinct, from the analysis concerning section 148(a)(1). Again, in this case, the accusatory pleading charged both ways of committing a violation of section 69. Therefore, simple assault (or battery) are presumptively lesser included offenses. (Brown, supra, 245 Cal.App.4th at p. 153.) And, as in all lesser included offenses, there must be evidence to support the court giving the lesser included offense instruction. (People v. Romero (1975) 48 Cal.App.3d 752, 758.) But here, unlike the analysis as to section 148 (a)(1), we agree with Osorio that there was some evidence that he may have committed only the lesser offense of simple assault or battery without also committing a violation of section 69. The case of Brown, supra, 245 Cal.App.4th 140, is informative.
In Brown, the defendant was riding his bicycle in violation of local ordinances (wearing headphones and without a light). (Brown, supra, 245 Cal.App.4th at p. 146.) The police ordered the defendant to stop, but he fled and the police eventually caught him in a nearby parking lot. According to the police, after repeatedly ordering the defendant to stop, they tackled him, throwing him of off his bicycle and onto the ground. (Ibid.) But according to the defendant, "he fell off his bicycle in the parking lot after hitting a curb. He claimed that, without any kind of warning, and while he was face down on the ground, not resisting and no longer fleeing, one of the officers dived on his back with enormous force, 'like Superman,' pinning him down. That officer, angry and unprovoked, then proceeded to slug him in the head three times." (Id. at p. 147.) The jury found defendant guilty of violating section 69; at issue on appeal was whether the trial court erred by failing to instruct on simple assault as a necessarily lesser included offense of section 69. (Id. at pp. 150-151.)
Again, the Brown court held that simple assault was a presumptively necessarily lesser included offense under the accusatory pleading test. (Brown, supra, 245 Cal.App.4th at p. 153.) Further, the court found that "the jury could also have concluded that [the defendant] used excessive force or violence to resist arrest only in response to the officers' unreasonable force. Under that scenario, [the defendant] could have been found not guilty of the section 69 violation, but still guilty of the lesser crime of assault." (Id. at p. 154.) Thus, the appellate court found: 1) that the trial court committed error, and 2) that it was reasonably probable that the error affected the outcome of the trial. (Id. at p. 155.)
Here, similar to Brown, the jury could have found that Osorio committed an assault or battery without also committing a violation of section 69. The evidence at trial was that after the officers requested that Osorio leave the elevator, he charged at Officer Romero. In response to Osorio's charge, Romero testified that he hit Osorio in the face, driving him to the back of the elevator where he hit the wall. Osorio then started punching and kicking at both officers and the melee ensued. Therefore, if the jury concluded that Osorio used excessive force or violence to resist arrest or detention (charging at Romero), but that Romero responded with unreasonable force (hitting Osorio in the face), then the jury could have found Osorio not guilty of section 69, but guilty of an assault or battery for thereafter attempting to the punch the officers (assault) or successful kicking them (battery).
However, we do not find that the error was prejudicial. (Watson, supra, 30 Cal.3d 290, 296-297.) Unlike Brown, no percipient witness testified for the defense; therefore, there was no version of the evidence that contradicted both of the officers' testimony. When the officers first arrived at the location of the domestic violence call, they heard a woman shout: "Let me go. Stop it. The baby." Moreover, Osorio reacted immediately with threats and a combative demeanor once he saw the officers: "F*** you, come and get me." Osorio eventually charged at Officer Romero, and the officers responded with force. We do not think that it is reasonably probable that a jury would have found that the officers' use of force was unreasonable given the potential danger and volatility of the situation they were confronting, as well as the close quarters of the elevator. Indeed, the jury rejected Osorio's excessive force defense.
In sum, while the trial court erred by failing to instruct the jury on simple assault or battery as lesser included offenses of section 69 under the accusatory pleading test (see Brown, supra, 245 Cal.App.4th at p. 153), it is not reasonably probable that the error affected the outcome of the trial.
3. Simple assault and battery as lesser included offenses of felony battery
"When a defendant pleads not guilty and is convicted as the result of a trial, in general any issue bearing on the determination of guilt and apparent from the record is cognizable on appeal. [Citation.] By contrast, when a defendant pleads guilty . . . and is convicted without a trial, only limited issues are cognizable on appeal. A guilty plea admits every element of the charged offense and constitutes a conviction [citations], and consequently issues that concern the determination of guilt or innocence are not cognizable. [Citations.] Instead, appellate review is limited to issues that concern the 'jurisdiction of the court or the legality of the proceedings, including the constitutional validity of the plea.'" (In re Chavez (2003) 30 Cal.4th 643, 649.) In addition, "section 1237.5 authorizes an appeal [following a guilty plea] only as to a particular category of issues," and to have these issues considered on appeal, a defendant must first take the additional procedural step of obtaining a certificate of probable cause. (Id. at p. 650.)
Here, the People charged Osorio in count one of the amended information with a felony battery on an officer with injury. (§ 243, subd. (c)(2).) The jury was unable to reach a verdict on that charge. The trial court declared a mistrial and granted Osorio's motion to reduce the charge to a misdemeanor (without objection). (§ 17, subd. (b).) Osorio then pleaded guilty to the misdemeanor charge and thereafter did not obtain a certificate of probable cause.
Osorio argues on appeal that the trial court erred by not instructing the jury on simple assault and battery as necessarily lesser included offenses of the felony battery charge. But he pleaded guilty to the reduced battery charge. Thus, any issues concerning lesser included instructions as to the battery charge cannot be raised on appeal because they do not concern the court's jurisdiction or the legality of the plea. Further, Osorio failed to obtain a certificate of probable cause.
In sum, Osorio's lesser included instructional error claim as to the battery charge is not cognizable on appeal. C. Jury Instructions on Excessive Force and Self-Defense
Osorio claims that the trial court failed to adequately instruct the jury as to the defenses of: 1) excessive force; and 2) self-defense. Osorio asserts these two claims as they relate to both charged offenses. (§§ 243, subd. (c)(2), 69.) However, for reasons discussed in the prior section of this opinion, Osorio's claims as to the battery charge are not cognizable on appeal because he pleaded guilty to that charge. Thus, we will only analyze these two claims as they pertain to the section 69 charge.
Generally, a trial court has a sua sponte duty to instruct a jury on a defense if the defendant is relying on it, or when there is substantial evidence to support it and the instruction is not inconsistent with the defense theory. (See People v. Olguin (1981) 119 Cal.App.3d 39, 46 (Olguin).) "In determining the adequacy of jury instructions, we consider the entire charge of the court and assume jurors are intelligent people capable of understanding and correlating all the instructions given. [Citation.] An instruction is considered flawed only if there is '"a reasonable likelihood that the jury misconstrued or misapplied the words" of the instruction. [Citation.]'" (People v. King (2010) 183 Cal.App.4th 1281, 1316.)
1. Excessive force
The crime of attempting to deter an executive officer from the performance of his or her duties through force or violence "requires that the officer be engaged in the lawful performance of his duties." (People v. Rodriguez (2012) 207 Cal.App.4th 1540, 1543.) An officer who uses excessive force is not lawfully performing his or her duties. (People v. Jenkins (2000) 22 Cal.4th 900, 1020.)
Here, Osorio explicitly relied on the defense of excessive force; therefore, the trial court had a sua sponte duty to instruct on it. As to section 69, the court instructed the jury within the official instruction for the crime itself that "[w]hen the defendant acted, he intended to prevent or deter the executive officer from performing the officer's lawful duty." (CALCRIM No. 2651; Cal. Rules of Court, rule 2.1050(a) ["The California jury instructions approved by the Judicial Council are the official instructions for use in the state of California"].) The court also instructed the jury using the separate jury instruction defining what constitutes an officer's lawful performance of his or her duties. (CALCRIM No. 2670.) In relevant part, the instruction stated that: "A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention." (CALCRIM No. 2670.) That is, the court instructed the jury that if it found that the officers acted with excessive force under CALRIM No. 2670, then officers were not lawfully performing their duties under CALCRIM No. 2651. Thus, we find that the court adequately instructed the jury concerning the defense of excessive force.
Osorio argues that the trial court did not adequately "link[]" the jury instruction for the crime itself, CALCRIM No. 2651, with the jury instruction concerning lawful performance and excessive force, CALCRIM No. 2670. We disagree. While the court did not include a bracketed paragraph within CALCRIM No. 2651 that would have directed the jury to CALCRIM No. 2670, we presume that the jury was able to understand and correlate the two instructions. Indeed, the two instructions were within five pages of each other within the jury's packet of instructions.
Osorio also argues that Olguin, supra, 119 Cal.App.3d 39, compels a different result. We disagree. In Olguin the defendant was on trial for assaulting two peace officers; the jury convicted him of resisting, delaying, or obstructing arrest, which were lesser included offenses. (Id. at p. 41.) The Olguin court reversed the defendant's convictions because: "The jury was not instructed that an officer is acting unlawfully and not in the discharge of his duties when he uses excessive or unreasonable force. Nor was the jury instructed that appellant could not be convicted . . . if the officer used excessive or unreasonable force, thus placing the officer outside the performance of his duties." (Id. at pp. 45-46.)
Here, unlike Olguin, the trial court instructed the jury that if an officer uses excessive or unreasonable force he is not acting lawfully (CALCRIM No. 2670), and that the jurors could not find Osorio guilty of section 69 if they found that officers were not acting lawfully (CALCRIM No. 2651). Thus, the instructional errors present in Olguin are not present here.
Osorio also argues that the jury instruction concerning lawful performance mistakenly identified only one of the two officers. The instruction stated: "The People have the burden of proving beyond a reasonable doubt that Edward Gutierrez was lawfully performing his duties as a peace officer." (CALCRIM No. 2670.) This contention was forfeited because it was raised for the first time in Osorio's reply brief. (See Keyes v. Bowen (2010) 189 Cal.App.4th 647, 660 [contention raised for first time in reply brief is forfeited without a showing of good cause].) Nevertheless, we shall briefly address the argument. We presume that the jurors were of reasonable intelligence and understood that the People had the burden of proving that both officers were acting in lawful performance of their duties. We do not think it is reasonably probable that the jury misunderstood that the "lawful performance" element of section 69 applied to only Officer Gutierrez and not to Officer Romero.
2. Self-Defense
"'To justify an act of self-defense . . . the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. [Citation.]' [Citation.] The threat of bodily injury must be imminent [citation], and '. . . any right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.]'" (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065.) "'"'"[I]f the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, he must request the additional or qualifying instruction in order to have the error reviewed."'"'" (People v. Welch (1999) 20 Cal.4th 701, 757.)
Here, Osorio did not request a self-defense instruction. In fact, his counsel stated: "I'm not, however, asking for the self-defense instruction." Nevertheless, the trial court instructed the jury on the relevant principles of self-defense within the "lawful performance" jury instruction: "If a peace officer uses unreasonable or excessive force while detaining or attempting to detain a person, that person may lawfully use reasonable force to defend himself or herself. [¶] A person being detained uses reasonable force when he or she: (1) uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer's use of unreasonable or excessive force; and (2) uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection." (CALCRIM No. 2670.)
In this appeal, Osorio does not argue that the trial court's instructions regarding self-defense were legally incorrect. Rather, Osorio argues that the court's instructions were incomplete because the court did not provide any additional self-defense instructions, specifically CALCRIM Nos. 2672 and 3470-3477. But Osorio could have requested those additional instructions at trial. Because Osorio did not ask the court for any additional or qualifying instructions concerning self-defense (in fact, he specifically disclaimed a self-defense instruction), this argument has been forfeited. In any event, the court instructed the jury on the relevant principles of self-defense within CALCRIM No. 2670, so there was no error. D. Prosecutorial Misconduct
"The standards under which we evaluate prosecutorial misconduct may be summarized as follows. A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, . . . when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Morales (2001) 25 Cal.4th 34, 44.)
Generally, in order to raise any alleged errors on appeal, they must have first been brought to the attention of the trial court. This long-standing rule is commonly referred to as "'waiver,'" but it is more accurately described as "'forfeiture.'" (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [waiver is the intentional relinquishment of a known right; forfeiture is the loss of right by failing to timely assert it].) A defendant forfeits any complaint of prosecutorial misconduct on appeal unless he timely objected to the alleged misconduct at the time it occurred and also requested that the jury be admonished to reject the alleged impropriety. (See People v. Ervine (2009) 47 Cal.4th 745, 806.)
Here, Osorio claims that prosecutor committed misconduct in three instances: 1) by misinforming the trial court that both counts were general-intent crimes; 2) by misinforming the court that there were no lesser included offenses of section 69; and 3) by misstating the facts and the law to the jury regarding "touching" element of the battery charge.
However, Osorio has forfeited these contentions because he did not object to them at trial, nor did he request a curative instruction. Nevertheless, we shall briefly address them. As to the first two claims, Osorio has made no showing that the prosecutor engaged in deception; the prosecutor apparently believed (as did the trial court and Osorio's counsel) that section 69 was a general-intent crime and there were no lesser included instructions; therefore, Osorio has not shown prosecutorial misconduct. As to the third claim, which concerns the battery charge, Osorio pleaded guilty to that crime. Thus, as discussed earlier in this opinion, his contentions in that regard are not cognizable. E. Ineffective Assistance of Counsel
A criminal defendant has a constitutional right to effective assistance of counsel. (U.S. Const., 6th Amend.; Strickland v. Washington (1984) 466 U.S. 668, 684-685 (Strickland).) To establish a violation of this right, a defendant must show: 1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and 2) this resulted in prejudice to the defendant. (Id. at pp. 687-688, 691-692.) "'The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.'" (People v. Karis (1988) 46 Cal.3d 612, 656.)
As to the prejudice prong, "the question is whether there is a reasonable probability that, absent [counsel's] errors, the factfinder would have had a reasonable doubt respecting guilt." (Strickland, supra, 466 U.S. at p. 695.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Williams (1997) 16 Cal.4th 153, 215.) "We need not and do not determine whether petitioner established the first prong, deficient performance, because we conclude, as did the trial court, that even if counsel's performance was deficient, petitioner has failed to sustain his burden on the issue of prejudice." (In re Alvernaz (1992) 2 Cal.4th 924, 945, citing Strickland, supra, 466 U.S. at p. 697 ["'[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed'"].)
Here, Osorio claims that his trial counsel provided ineffective assistance in five ways: 1) by failing to request instructions as to specific intent, intoxication, self-defense, and lesser included offenses as to section 69; 2) by failing to request lesser included instructions and arguing defenses as to the battery charge; 3) by failing to object to the alleged instances of prosecutorial misconduct; 4) by failing to ascertain (during sentencing) that Osorio's prior parole revocation had been reversed on appeal; and 5) the cumulative prejudicial effect of ineffective assistance as to both counts. We shall address each contention in turn.
1. Section 69 conviction
As to Osorio's first set of claims regarding his section 69 conviction, we have previously analyzed either the substance and/or prejudicial effect of each of these issues (specific intent, intoxication, self-defense, and lesser included offenses). As to two claims, we found that the court committed error. We found the trial court erred by instructing the jury that section 69 is a general intent (rather than a specific intent) crime and that the court should have instructed on the lesser included offenses of simple assault or battery. But in finding error, we also found that the errors were not prejudicial. Thus, when Osorio argues that his counsel was ineffective for failing to request an instruction as to specific intent, we would necessarily find that the alleged ineffective assistance of counsel claim was also not prejudicial because he was not prejudiced by the error. The same analysis is true regarding the lesser included offenses of simple assault and battery.
As to the other claims regarding section 69, we found that the trial court did not commit error; therefore, Osorio was not logically prejudiced. For instance, we found that the court adequately instructed the jury as to self-defense. Thus, when Osorio argues that his counsel was ineffective for failing to request additional self-defense instructions, we would necessarily find that the alleged ineffective assistance of counsel claims in this regard were also not prejudicial. The same analysis is true regarding the remainder of Osorio's claims of ineffective assistance regarding section 69.
2. Battery conviction
Once more, when a defendant pleads guilty, the issues on appeal are limited to those that concern the trial court's jurisdiction or the legality of the proceedings. (In re Chavez, supra, 30 Cal.4th at p. 649.) Further, a defendant must also first obtain a certificate of probable cause. (Id. at p. 650; § 1237.5.)
Here, as discussed earlier, Osorio pleaded guilty to the reduced misdemeanor battery charge and did not obtain a certificate of probable cause. Thus, Osorio's claims on appeal regarding the battery conviction as they relate to his ineffective assistance of counsel claims are not cognizable.
3. Prosecutorial Misconduct
Osorio argues that his trial counsel committed error when she "failed to object to the prosecutor's misrepresentations that both counts were general-intent crimes, that there were no lesser included offenses for Count 2 [section 69], and that the injury element for Count 1 [battery] could only be satisfied by a direct-application of force by the defendant."
Here, as far as the general intent and lesser included offenses as to section 69, we have already determined that any errors were not prejudicial. Thus, we find that Osorio was not prejudiced by his counsel's failure to object to any alleged instances of prosecutorial misconduct. And again, any claims regarding the battery charge are not cognizable on appeal due to Osorio's guilty plea.
4. Sentencing Hearing
"When a sentence of imprisonment is imposed . . . the sentencing judge must select the upper, middle, or lower term on each count for which the defendant has been convicted . . . ." (Cal. Rules of Court, rule 4.420(a).) "In exercising his or her discretion in selecting one of the three authorized terms . . . the sentencing judge may consider circumstances in aggravation or mitigation . . . ." (Cal. Rules of Court, rule 4.420(b).) "Circumstances in aggravation include factors relating to the crime and factors relating to the defendant." (Cal. Rules of Court, rule 4.421).) "Factors relating to the defendant include that: (1) The defendant has engaged in violent conduct that indicates a serious danger to society; . . . and (5) The defendant's prior performance on probation . . . or parole was unsatisfactory." (Cal. Rules of Court, rule 4.421(b).)
Prior to the sentencing hearing, the People filed a "SENTENCING BRIEF." The People argued as a factor in aggravation that Osorio's prior performance on parole was unsatisfactory: "The defendant sustained a parole violation in 2013 . . . . The defendant was discharged . . . just 3 months before the defendant committed the violent crime in this case." The People were referring to an earlier case in which Osorio had been on parole following convictions for second degree robbery and street terrorism. (People v. Osorio (2015) 235 Cal.App.4th 1408, 1410 (Osorio I).) Osorio admitted violating a condition of parole by talking to two gang members for 10 minutes. (Id. at p. 1415.) However, on appeal this court held in Osorio I that the revocation of Osorio's parole based on this parole violation was unwarranted based, in part, on the de minimis nature of the violation. (Id. at p. 1415.)
Here, Osorio concedes that the People accurately stated in their sentencing brief that he had "sustained a parole violation." Nevertheless, Osorio argues that his trial counsel was ineffective because she "failed to alert the sentencing court that this Court had reversed the parole revocation order." (Italics added.)
Here, we need not address the merits of this claim because we find that any alleged ineffective assistance was not prejudicial under Strickland, supra, 466 U.S. at p. 697. At sentencing, the trial court struck Osorio's prior strike conviction, imposed a mid-term sentence of two years (as opposed to the upper term of three years urged by the People), suspended sentence on the misdemeanor battery plea, and imposed an additional one year for the prison prior. Given Osorio's arguably lenient aggregate sentence of three years—where a prior strike conviction had been alleged—we find "that even if counsel's performance was deficient, petitioner has failed to sustain his burden on the issue of prejudice." (In re Alvernaz, supra, 2 Cal.4th at p. 945.) F. Police Personnel Records
"A trial court's ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion. [Citation.]" (People v. Hughes (2002) 27 Cal.4th 287, 330.) In this case, a sealed transcript of the in camera hearing is part of the appellate record. Osorio asked that, we "conduct an independent review of the reporter's transcript of the in camera hearing that was conducted by the trial court in order to determine whether any documents were incorrectly withheld." The Attorney General did not object. We have reviewed the transcript of the Pitchess hearing and have concluded that the court did not abuse its discretion. G. Cumulative Error
Osorio argues the cumulative effect of his claimed errors deprived him of his right to due process. Under the "'cumulative error'" doctrine, we reverse the judgment if there is a "reasonable possibility" that the jury would have reached a result more favorable to the defendant absent a combination of errors. (See In re Avena (1996) 12 Cal.4th 694, 772, fn. 32 ["Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial"].)
Here, we found that the trial court committed two errors by designating the section 69 violation as a general-intent crime and by failing to instruct the jury on either simple assault or battery as necessarily lesser included offenses of section 69. However, we found that those two errors were not prejudicial. We did not find that the court committed any errors regarding the instructions concerning defenses (excessive force and self-defense). Nor did we find any errors concerning Osorio's additional claims of prosecutorial misconduct or ineffective assistance of counsel.
In sum, given the state of the undisputed evidence provided by the two officers—that we need not repeat here—we conclude that cumulative effect of the errors was not prejudicial.
III
DISPOSITION
The judgment is affirmed.
MOORE, ACTING P. J. WE CONCUR: ARONSON, J. IKOLA, J.